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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, September 8, 2009

Racial harassment case gets a second look

Thomas Aulicino's supervisor at the New York City Department of Homeless Services did not like white people, and he certainly did not like Aulicino. The supervisor, Mr. John, told Aucilino that it was all right for a DHS client to call Aulicino a "white mother fuck." Mr. John also said things like "white people are lazy" and "there was some sort of white conspiracy" when white workers took the day off. Another black supervisor, Mr. Johnson, made similar statements during a later time period. Mr. John also denied Aulicino a promotion after trying to discourage him during the interview. The district court dismissed the case. The Second Circuit revives the case.

The case is Aulicino v. New York City Department of Homeless Services, decided on September 8. First, the promotion claim. The Court of Appeals (Sack, Straub and Wesley) holds that the jury may find that Aulicino was qualified for the Motor Vehicle Supervisor position because the department did not always strictly apply the job requirements, as a black employee (Johnson) who was hired for that position did not have the "necessary" dispatching experience, either, and contrary to the job posting, Johnson also lacked a Class B CDL license.

What about intent to deny the promotion because of Aulicino's race? To make out a failure to promote case under Title VII, the plaintiff has to show that he was qualified for the position and that the employer intended to discriminate. The Court of Appeals says that Mr. John's racially-discriminatory comments to Aulicino in the workplace constitute direct evidence of discriminatory intent: "John's comment to Aulicino that Aulicino 'deserved' to be called 'a white mother fuck' by a DHS client, and his comment to Aulicino that 'white people are lazy.' We think a reasonable jury could infer from these comments ... that John's hostility toward Aulicino was race-based, and that that hostility played a role in the denial of the promotion." (Mr. John did tell someone else that "he wouldn't hire that white fuck," but the court finds this might be inadmissible hearsay).

The Court of Appeals is not quite sending the racial harassment case to the jury, however. Under this ruling, the district court has to reconsider its dismissal of the racial harassment claim. Most racial harassment cases involve racist whites harassing blacks. This case is the opposite, but the legal standard is the same. Summarizing the standard, the Second Circuit notes that case law considers misconduct that is "both frequent and severe, for example, when a supervisor utters 'blatant racial epithets on a regular if not constant basis' and behaves in physically threatening manner." But, the Court of Appeals, says, the work environment may be illegal "if the conduct there is either so severe or so pervasive as to alter the working conditions of a reasonable employee."

The fact that Mr. John made his racial comments from December 2001 through September 2002 and another supervisor, Mr. Johnson, made anti-white comments from January through July 2005 is enough to show a severe or pervasive hostile work environment. The district court dismissed the case without viewing the evidence in a light most favorable to Aulicino. Not only did the district court outright overlook one of Mr. John's racist statements, but the court reviewed all the racial comments over a five year period (which dilutes the case) rather than set aside the two year period when no racial comments were made by any supervisors. As the Court of Appeals frames it:

The calculation ... of the relevant time period in which the alleged derogatory comments were made appears to have been analyzed in the light least, rather than most, favorable to the plaintiff. The magistrate judge viewed the comments as having been made "over a five-year time period," even though the first comment it mentions dates from December 16, 2001 and the last was in July 2005, less than four years later. In addition, the "cumulative" assessment contained in the [district court opinion] includes a 26-month period between the last comment by John and the first comment by Singleton. We think that, in order to take the facts of this case in the light most favorable to Aulicino, the court should have discounted from its analysis, if not altogether disregarded, the intervening period between comments by one supervisor and comments by another. In our view, a "realistic" picture of the hostile workplace alleged by Aulicino is not obtained by focusing on a two-year stretch of time in which he fails to allege acts of hostility, and using that time to dilute the strength of his claims based on two discrete periods of more intense harassment.

Got that? In assessing the frequency of the racial comments, courts normally calculate the number of comments in light of the relevant time period. Here, Aulicino has a five-year period in which he endured racial comments. That's a long time, for which many racial comments are necessary in order to make out a hostile work environment claim. If you take out the 26 months without racial comments and bear in mind that Aulicino had two managers making anti-white comments during discrete time periods, then the jury can find in Aulicono's favor. There is no mathematically precise test in deciding these cases, the Court of Appeals reminds us. The district court has to reconsider the motion for summary judgment in light of the Second Circuit's analysis.

I believe Aulicino. I'm a victim of something very similar right now. My supervisor said to the other black clerk regarding the clerk helping a candidate at the counter, "Did she cracker him?".That means, did she treat him like white slave drivers did when they cracked the whip? This is a new sup for me, and it makes sense to me now as to why she's intimidating and harrasing me. there is a march in america with some ignorant blacks who listen to Black liberation theologists who say that the blacks must get back at whitie, and they are on a mission. Similar to R'Wanda..did you see the documentary? see the movie? America wakeup and don't let this happen to your children.I'm filing a lawsuit against this supervisor, and I'm not letting her treat me this way for 2 years. I may not win without a long history of her using the word cracker, but at least I will let a lot of people know what is going on in government jobs. Avoid big goverment, because there is no equal opportunity for whites,just blacks. They will run the country if you let them. The wrong kind, not the ones who don't agree with them...